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HQ 963753

July 25, 2000

CLA-2 RR:CR:TE 963753 RH


TARIFF NO.: 4407.10.0015

Area Director
U.S. Customs
9801 Pacific Highway
Blain, Washington 98230
RE: Request for Internal Advice; classification of rougher header lumber Dear Sir:

This ruling is in response to your request for Internal Advice regarding the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), for certain rougher header lumber. Samples were submitted to this office for review. The Request for Internal Advice was initiated by Sharretts, Paley, Carter & Blauvelt, P.C., on behalf of Jackpine Forest Products, Ltd.


Counsel’s letter describes the subject merchandise as featuring the following physical characteristics: spruce, pine or fir wood (“SPF”), kiln dried (“KD”), combed fascia surface (at least one side run through a special broken knife planer resulting in a rough texture), stud grade (conforming to accepted industry standards allowing the lumber to be designated as a “stud,” which thereby allows the lumber to be used as a vertical wall piece, a sill or plate, a header above a door or window, or webbing in a truss), 2X4, 2X6, 2X8 (industry standard thickness and width designations), and precision end trimmed (“PET”) to lengths 92 5/8 inches, 104 5/8 inches and 116 5/8 inches, which are the standard industry lengths for stud grade lumber.


It is counsel’s opinion that the physical properties of the subject merchandise fit squarely within the description of the merchandise addressed in New York Ruling Letter (NY) 803538, one of the two New York rulings that was the subject of a final revocation notice, published in the Customs Bulletin, dated June 9, 1999, Vol. 33, No.22/23, and reclassified under heading 4407, HTSUS, in the provision for general lumber. In that notice Customs revoked any treatment previously accorded to substantially identical transactions and the revocation became effective for merchandise entered or withdrawn from warehouse for consumption on or after 60 days from the date of publication in the Customs Bulletin. In this case, that is August 9,1999 (which is 60 days from the June 9, 1999, publication date of the Customs Bulletin).

As such, counsel argues that Customs is “required” to classify his client’s shipments of merchandise in heading 4418, HTSUS, for entries through August 8, 1999. In further support of this claim it is stated that “Jackpine accurately described its imported rougher header lumber in invoices available to Customs at time of entry and expressly advised Headquarters in its March 30, 1999, comments, that its lumber had been precision end trimmed.”

Finally, although counsel concedes his client’s deliberate attempts to process the subject merchandise in such a way as to avoid classification in heading 4407, HTSUS, reference is made to several court cases which have upheld the importer’s right to fashion merchandise resulting in legal tariff engineering and legitimate duty avoidance (or as in this case, permit avoidance).

Accordingly, counsel is asking that this office review the submitted facts and find that the proper classification for the subject merchandise, at the time of entry, was in heading 4418, HTSUS, which provides for, among other things, builder’s joinery and carpentry of wood.


What is the proper classification for the subject merchandise?


Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI’s). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI’s taken in order.


Chapter 44, HTSUS, provides for, among other things, wood and articles of wood. This chapter is structured so that less processed wood appears at the beginning of the chapter followed by more advanced wood in later headings within the same chapter. Thus, for example, heading 4403, HTSUS, is a general provision for wood in the rough, whether or not stripped of bark or sapwood or roughly squared, and heading 4421, HTSUS, is a basket provision for more advanced articles of wood that cannot be classified elsewhere in the chapter.

As heading 4407 resides at the beginning of Chapter 44, HTSUS, it reflects coverage of a relatively basic category of lumber products in relation to heading 4418, which, residing closer to the end of Chapter 44, HTSUS, reflects coverage of a relatively more advanced category of products. Heading 4407, HTSUS, provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm. The Explanatory Notes to the Commodity Description and Coding System (EN) to heading 4407, HTSUS, state in relevant part:

The products of this heading may be planed (whether or not the angle formed by two adjacent sides is slightly rounded during the planing process), sanded, or end-jointed, e.g. finger-jointed (see the General Explanatory Note to this Chapter).

Heading 4418, provides for, among other things, builder’s joinery and carpentry of wood. The EN to heading 4418, HTSUS, state in pertinent part:

This heading applies to woodwork, including that of wood marquetry or inlaid wood, used in the construction of any kind of building, etc., in the form of assembled goods or as recognizable unassembled pieces (e.g., prepared with tenons, mortises, dovetails or other similar joints for assembly), whether or not with their metal fittings such as hinges, locks, etc.

The term “joinery” applies more particularly to builders’ fittings (such as doors, windows, shutters, stairs, door or window frames), whereas the term “carpentry” refers to woodwork (such as beams, rafters and roof struts) used for structural purposes or in scaffoldings, arch supports, etc., and includes assembled shuttering for concrete constructional work.

Additional U.S. Rule of Interpretation 1(a) provides that in the absence of context to the contrary, a tariff classification controlled by use, other than actual use, is to be determined by the principal use in the United States at, or immediately prior to, the date of importation, of goods of the same class or kind of merchandise.


In E.C. Lineiro v. United States, 37 CCPA 10, CAD 411, (1949), the court stated that “a designation by use may be established, although the word ‘use’ or ‘used’ does not appear in the language of the statute.” As such, it is the use of the class or kind of merchandise to which the imported article belongs which must be determined. Further, it is settled Customs law that merchandise is classified in its condition as imported. The instant merchandise at the time of importation is squarely within the class or kind of merchandise covered by heading 4407.

A critical issue in the proper tariff classification of the subject merchandise requires a distinction between the merchandise in NY 803538, addressed in the June 9, 1999, revocation notice, and the merchandise imported by Jackpine. Although the merchandise covered by the revocation notice, similar to Jackpine’s merchandise, was run through a broken knife planer on at least one side, it was NOT stud grade or precision end trimmed. Although these differences were trivialized and considered not relevant by counsel to the overall classification of this merchandise, this is not the case. There was no logical reason for Customs to address additional factors such as the stud grade of the lumber or the fact that it was “precision end trimmed” if that merchandise did not exhibit these features. Customs analysis of merchandise in a ruling letter reflects solely the merchandise that is at issue; it does not presume to cover any and all possible variations for that merchandise. The fact that the importer decided that the absence of any mention of such features to be irrelevant was wrong.

Additionally, the merchandise that was the subject of the revocation letter explicitly stated that the merchandise would be used as fascia and trim board in the construction of buildings. Again, although counsel states that this information is superfluous to the ultimate classification, we would disagree. It is a basic tenet of Customs classification law that merchandise is classified based on its “principal use” and condition at the time of importation in the United States. A statement going to the principal use of the merchandise provides guidance with respect to the “class or kind” of merchandise to which the imported merchandise belongs. Before the revocation notice was published, it was Customs belief that rougher header lumber, fitting the description set forth in NY 803538, was properly classified in heading 4418, HTSUS. However, as Jackpine’s merchandise was not virtually identical or even similar to the merchandise covered by that notice, Customs would never have classified that merchandise in its condition as imported in heading 4418, HTSUS. The classification of Jackpine’s merchandise, even prior to the revocation notice, would have been in heading 4407, HTSUS, as general lumber. As such, we are not disputing an importer’s right to “tariff engineer” his merchandise such that it may be classified in a provision with a lower duty rate. We merely cannot approve of such “tariff engineering” when the modifications (or in this case, processing’’) made to that merchandise do not change the nature of the merchandise enough to give rise to an alternate and viable classification under the tariff.


With respect to the remaining arguments made by counsel in his submission which are not addressed in this letter, they are not relevant to the proper classification of the subject merchandise and may be addressed at a later time in a different forum.

As such, the appropriate classification for this merchandise is in heading 4407, HTSUS.


The subject rougher header lumber is properly classifiable in subheading 4407.10.0015, HTSUS, which provides for wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6mm: coniferous: other: not treated: mixtures of spruce, pine and fir (“S-P-F”). The applicable rate of general duty is “Free”.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.


John Durant, Director

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